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Judgment
The petitioners are said to be the accused in a case registered as Crime no.260/2012 before the Ulsoor Police Station on the basis of the reference made by the X Additional Chief Metropolitan Magistrate, Bangalore in PCR no.89/2012.
The facts of the case as stated by the petitioners, leading up to this petition are stated as follows.
The first petitioner is said to be one of the Trustees of the International Society for Krishna Consciousness (ISKCON). A Society registered under the Societies Registration Act, 1860, and also as a public trust under the Bombay Public Trusts Act, at Mumbai. It is stated that the second petitioner is one of the branches of ISKCON, at Bangalore.
It is stated that the fourth respondent and others, who were in charge of ISKCON, Bangalore from the year 1984 onwards are said to have filed several civil suits, till the year 1999, seeking to protect their position as office bearers of the Bangalore branch. It is stated that having failed to obtain interim orders in any of those suits, had in the year 2001 sought to claim as being in exclusive management of ISKCON, Bangalore, in the civil suit in OS 7934/2001. In the said suit, the first petitioner herein is said to have filed a counter claim, on behalf of ISKCON, Mumbai, to contend that no person could claim management of the ISKCON temple at Bangalore, under a defunct society which the fourth respondent herein sought to represent, in claiming the exclusive management, in the said suit.
It is stated that during the course of the trial in the case in OS 7934/2001, voluminous documents were said to have been filed by the parties. The first petitioner herein, who was a defendant in the said suit is said to have filed documents compiled into 32 volumes, which were said to have been marked as Exhibits D-1 to D-345. It is stated that Volume no.2 in particular consisted of 199 pages and contained the documents marked as D-24 to D-
Of these documents, Exhibit D-28 is a document which has given rise to controversy and is the subject matter of the criminal case initiated against the petitioners.
It is stated that from the year 1983 to 2000, the fourth respondent and others, as office bearers of the Bangalore branch of ISKCON, had been sending the audited accounts of the branch to head office of ISKCON at Mumbai, the accounts were said to have been audited by one V.L. Varadarajan on behalf of V.L.V. and Company. It is stated that the said Varadarajan had filed the audited accounts of ISKCON, Bangalore, for the financial year 1-4-1990 to 31-3-1991 and the said report had been submitted on 4-10-1991, which had been forwarded to the Mumbai, head office, by the fourth respondent herein. However, it is said to have been discovered that the very same Chartered Accountant had submitted a second audit report in respect of the same financial year in the name of ISKCON, Bangalore, represented by the Society under which the fourth respondent herein was claiming, dated 9-8-2001, to the Registrar of Societies at Bangalore. This had lead to a complaint being instituted against the Chartered Accountant before the Institute of Chartered Accountants, leading to disciplinary proceedings against the said Chartered Accountant. It transpires that the suit in OS 7934/2001, filed by the fourth respondent herein having been decreed in his favour, the same was challenged in the appellate jurisdiction of this court in RFA 421/2009 and the said appeal is said to have been allowed by a judgment dated 23-5-2011. The said judgment is now under challenge before the Apex court and is said to be pending.
It further transpires that in July 2012, the petitioners are said to have held a meeting with the media and had made a press release as to ISKCON, Bangalore being a branch of ISKCON, Mumbai, and are said to have annexed a copy of Exhibit D-28, a document said to have been part of the record in the civil suit OS 7934/2001, which actually consisted only of 10 pages, of which pages 8 & 9 were not seen to be signed by the purported author. However, the copy annexed to the press note and copy of which was said to have been circulated and received by the de facto complainant at his Ulsoor office, contained a 11th page, which therefore, was alleged by the complainant as being a forged and fabricated document. On the basis of the complaint, the Magistrate having referred the matter to the police for investigation, the said proceedings are sought to be questioned in the present petition.
This court, while directing notice of the petition to the respondents, had passed an order staying all further proceedings in the pending criminal case. The respondents, on entering appearance, have filed their statement of objections and also sought that the order of stay be vacated. Having regard to the fact that the stay order being vacated would result in the petition being rendered infructuous, the petition is heard on merits. At the hearing, the learned counsel for the petitioners seeks to press two interlocutory applications seeking that the Registrar of the City Civil Court, Bangalore and the Registrar General, High Court of Karnataka, be made parties to the petition and further that this court direct the Registrar General of this court to hold an enquiry as regards the allegation of the court seal found on page 11 of Exhibit D-28 as being a forged seal.
In so far as the merits of the petition is concerned, the learned counsel for the petitioners seeks to urge the following contentions. The complaint alleges several offences punishable under Sections 417,466,468,469,471,474 and Section 120B of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC'', for brevity). It is pointed out that in so far as offences punishable under Sections 471 and 474 IPC are concerned, the complaint is not maintainable, in view of Section 195 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as the ''CrPC'', for brevity) prescribing that no court shall take cognizance of any offence unless it is brought as prescribed therein.
It is contended that the glaring holy nexus between the third respondent police inspector and the complainant and the fourth respondent and his followers is glaring by the very circumstance that neither the ISKCON temple, Bangalore nor its office is situated within the jurisdiction of the Ulsoor Police station, however, it is by design that the complainant claims to be a legal officer of the defunct society under which the fourth respondent claims and alleges to have received a copy of the disputed document at the address shown in the complaint, to ensure that the investigation is entrusted to the third respondent to suit the orchestrated ploy to frame the petitioners in a false and baseless criminal case. It is emphasized that in several incidental proceedings before this court and the Apex court as well, the complainant had never once shown the Ulsoor address of his purported office and it is for the first time that such a devise has been adopted only to lodge the present complaint.
It is contended that certified copies of Exhibit D-28 have been obtained prior to the filing of the present complaint and it is evident that the document at all times did consist of 11 pages and the sudden disappearance of page 11 from the record after the complaint was filed, as evident from a subsequent certified copy obtained of the same document, is a matter of concern for the petitioners as it is this singular circumstance which is sought to be highlighted by the complainant and hence the learned counsel for the petitioners contends that the petitioners do not put it beyond the capability of the respondents in having ensured the disappearance of page no.11 of Exhibit D-28,with the connivance of court staff, only to enable the filing of the false complaint against the petitioners. It is in this context that the counsel for the petitioners has filed the two interlocutory applications referred to above, seeking that the Registrar General of this court be made a party to hold an enquiry as to the manner in which page 11 of Exhibit D-28 is said to have disappeared.
It is pointed out that the respondents have filed a contempt petition before the Apex Court, which is directed to be listed along with the main petition in SLP 15814/2011, pending before that court, making the very allegations as in the complaint, which is yet another ground on which the complaint is held as not maintainable.
The learned Senior Advocate, M.T. Nanaiah, appearing for the counsel for the second respondent, S.G.Bhagwan appearing for the third respondent and Shri Srinivasa Ragahavan, appearing for the fourth respondent are heard.
On hearing the rival contentions and on a perusal of the documents produced, it is evident that the background to the complaint would indicate that after the complainant became aware of the petitioners seeking to rely on a purported certified copy of Exhibit D-28 consisting of 11 pages, that was said to have been circulated at a press meet and a copy of which was said to have been served on the complainant at his office at Ulsoor, that the following complaint is said to have been lodged before the City Civil Court, Bangalore, seeking clarification as to the number of pages constituting Exhibit D-28.
The complaint does disclose the grievance of the complainant with some clarity, the manner in which the alleged mischief is said to have taken place, and hence the same is reproduced herewith, verbatim :
"MEMORANDUM OF COMPLAINT PETITION
In the matter of Custody of documents in OS 7934/2001 and
In the matter of Ex.D28 in OS 7934/2001 and
In the matter of Tampering with evidential Records of court & Falsification in issue of certified copy.
The complainant submits as follows:
I. This Hon''ble Court is in custody of the evidences in OS 7934/01. The suit is pending in appeal before Hon''ble SC provides opportunity for SC to either remand the matter or call for records.
II. The Complainant having legal office at Ulsoor ISKCON Bangalore (a SOCIETY registered under the Karnataka Societies Registration Act, 1960) is the Plaintiff in the above referred suit. The address in the suit was Hare Krishna Hill, Rajaji Nagar, Bangalore-560010.
III. The first defendant in the above referred suit is ISKCON Bombay, Hare Krishna land, Juhu, Bombay 400049.
IV. We had applied for and obtained Ex.D28 many times immediately after the deposition and marking of Ex.D28 as evidence. Our first copy applied on was issued on 28/7/2008 it had 10 pages as per records of this court i.e. 8 pages of our audited balanced sheet and 2 pages of fabricated annexure without any signature or round seal of the auditor. This fact was also noted by this Hon''ble Court in its elaborate 320 pages judgement. All certified copies taken at several periods of time consisted of only 10 pages as per Court record in line with deposition and marking of evidence. A copy of certified copy of Ex.D28 of 2008 is enclosed as Annexure-A.
V. We had applied for 2 copies in June 2013. On 28.6.2013, one copy was issued with 10 pages as ever and another by a different clerk was sought to be issued with a noting that there is one page content not found. This page No.39 which is scribed by the defendant is not the numbering of court at all. Hence, it is not part of any exhibit. We were shocked to note that the court was issuing certified copy of a blank page. We protested and did not take the certified copy with the noting that there is a blank page in the exhibits. We took legal opinion and with our advocate we took delivery of the certified copy having an endorsement that there is a blank page no.39. Two versions of certified copies of Ex.D28 issued by copy section in June 2013 are enclosed as Annexure-B & C.
VI. We raised the issue with copy section that this is not as per the Court records and showed them the earlier certified copies and Exhibit marked as per court evidence. We were informed that the first defendant ISKCON Bombay had taken certified copy on 13.6.13 and that time they reported that there is a blank page which is missing page of Exhibit and demanded that an endorsement to this effect be given. Thus, the copy section issued a blank page is there endorsement to them.
VII. It is unfortunate that the copy section staff have provided such a certified coy, when no certified copy can be given to a blank page. There can only be certified copy of originals or certified copies of Courts filed in evidence. Thus, it is patent that there is a possibility of conniving with the first defendant by the staff in copying section which requires an thorough investigation. Their deposition will make it clear on the offence of the first defendant, which this Hon''ble Court may take suo motu cognizance under section 195 CrPC, 1973 and appropriate provisions of IPC and Contempt of Courts Act, 1971.
We set out the facts of the case and importance of Ex.D28 below:
On behalf of ISKCON Bombay defendant DW1 Dayaram Das deposed on 21/7/2008 by way of Examination-In-Chief. Ex.D28 was submitted as evidence by him deposing under affidavit. The DW1 deposition clearly shows that DW1 submitted 10 pages as evidence which this Hon''ble Court marked as evidence Ex.D28. 1990-91 audited balance sheet consisted of 8 pages of the audited balance sheet for the year 1990-91 issued by its Statutory Auditor CA.V.L. Varadarajan to the plaintiff Society. ISKCON Bombay trust claimed that as its branch audit report EX.D28. Thus this was a very crucial document for the defendant. ISKCON Bombay had added 2 pages annexure in Ex.D28 to 8 page original audit report & Balance Sheet issued by the auditor. They had been circulating photocopy of a 3rd page which was shown to have signature of the statutory auditor. The original of this 3rd page of annexure was not brought on record anywhere.
During cross examination DW1 was suggested that the Annexure is a cooked up document. DW2 M.V. Kapadia, was unable to answer satisfactorily about annexure. He said annexure was received along with the main audit report, however, when it was pointed out that main audit report in Ex.D28 was received on 5.10.1991 and annexure is received on 13.1.92, first defendant admitted that no resolutions had been passed and no evidence is provided for appointment of auditors.
The entire claim by the defendant on the property as branch property was through this fabricated Annexure. This Hon''ble Court found that all audited reports not only Ex.D28 but issued by all Chartered Accountants are issued to a society and not to any branch of ISKCON Bombay.
Further, their claim that the first ever audited balance sheet of their Bangalore branch is EX.D9 was disproved by evidence of author of the document CA.M.R. Ramakrishna appearing as PW3 on behalf of Bangalore Society. The copy of the page of deposition wherein exhibit D28 was marked as evidence is enclosed as Annexure-D.
The original of the 11th page which did not form part of marked Ex.D28 i.e. 3rd page of fabricated annexure with forged signature of our statutory auditor CA.V.L. Varadarajan, had never been produced anywhere.
First defendant did not even file a certified copy of the original before Hon''ble High Court. We had in our written argument filed in 2010 before HC had reaffirmed specifically that D28 consisted only of 10 pages and that the annexure to the Auditors report is a cooked up document. First defendant filed a reply later but this issue was not addressed.
Our above referred OS is in appeal before Hon''ble Supreme Court under SLP 15814/2011. In this SLP too, we had mentioned that 11th page of 90- 91 balance sheet claimed by them had never been produced in original. This was not replied by the first defendant. However, in Hon''ble SC first defendant filed under affidavit 11 pages of annexure EX.D28, stating that all documents filed are as per records of lower court. None of the pages had the court seal. It was not a certified copy. We filed a Criminal Contempt of SC on the first defendant a year back for this and till date no objection is filed explaining that this is as per lower court record.
DW1 Dayaram Das had filed a complaint against our auditor with Institute of Chartered Accountants of India (ICAI) that our auditor issued a branch audit report in 1991 and modified the same and issued the same accounts to Bangalore Society as society audit report. This complaint had been dismissed by the Council of ICAI on 12.1.2013 as per the findings released on 12.6.2013, stating that ISKCON Bombay misused and misinterpreted the audit reports of our auditor given to our society as their Bangalore branch audit report for their on-going legal proceedings. Thus, CAI council, who are ultimate expert in accounts and audit, decision confirms the finding of this Hon''ble Court.
On 10.6.10 in the enquiry in ICAI, Dayaram Das did not file a single original paper and no evidence of even certified copy of Ex.D28 was filed. Thus 11th page original or certified copy was not before ICAI. Prior to council decision, Disciplinary Committee (DC) had issued a report that our auditor is guilty on other counts, stating that our auditor issued balance sheets to Bangalore society, contrary to case of ISKCON Bombay.
Using the DC report of ICAI Dayaram Das defamed our auditor in media. During the defamatory media release he showed that photo copy of city civil court issued 11th page. This offence was registered under PCR94/2011 for criminal defamation, forgery, fabricating this Hon''ble Court seal etc.
Our auditor had challenged this DC order and the complaint itself before Hon''ble High Court of Karnataka under writ petition 26687/2011. In this writ petition this point was brought up. However, Dayaram Das did not reply this point on the 11th page original.
We have filed a PCR 89/2012 that based on the fabricated annexure and forged 11th page DW1 and agents of first defendant attempted to take over our property. This is registered as CR 260/2012 in Ulsoor police station.
We are now aware that they had filed a WP 28179/2013 which is came for hearing today i.e. 02.07.2013. We infer that this certified copy of blank was used to create some evidence to mislead the Hon''ble High Court and seek relief in the criminal case in which DW1 & agents of first defendant are accused. Thus, if this is used, first defendant had apart from committing criminal offences, would have also contempt of Hon''ble Court and Hon''ble High Court by filing false evidence. Copy of the Writ Petition details & respondent details are enclosed as Annexure-C.
The Complainant further submits that:
a) It is clear that first defendant has abused this Court''s machinery to scuttle the investigation and tamper/destroy evidence and/or create evidences to evade punishment. This is a serious offence.
b) This Court may be pleased to order that there is no missing page or exhibit and cancel that page out to rule out any error in issuing copy in future.
c) It would be in the interest of justice that this Hon''ble Court scrutinise the said page 39 and cross reference the same with deposition of DW1 and mark that there is no document which is missing as part of Ex.D28 or Ex.D29. This page is in between these 2 exhibits we were informed. Further, complainant humbly submits that the page numbers are not in court record and the volume itself is bound and submitted by first defendant.
d) It would also be in the interest of justice that the complainant is informed of the action taken and explanation provided by staff involved.
Where fore, the Complaint prays this Hon''ble Court to pass suitable orders and take suitable action for which act the Complainant shall forever be grateful.
For ISKCON Bangalore
Place: Bangalore
Date: 02/07/2013 Sd/-
Kodandarama Dasa
Legal Office: No.16, 1st floor,
Thope A Street, Ulsoor,
Bangalore-560001."
It is after having received a clarification from the said Court to the following effect, as per Endorsement dated 19.8.2013, that the criminal complaint has been lodged :
"CITY CIVIL COURT
No.ADM-I(Complaints)/259/2013 Office of the
City Civil Court,
Court Complex, Bangalore-9
August 19, 2013.
ENDORSEMENT
Sub: Your complaint dated 2.7.2013 regarding the Exhibit D-28 in O.S. No.7934/2001.
With reference to your complaint referred above I am directed to state that Ex.D-28 in O.S.No.7934/2001 contains 10 pages only when it is marked as Exhibit in the above case.
By Order of the Prl. City Civil and Sessions Judge,
Sd/-
Registrar,
City Civil Court,
Bangalore.
To:
Sri Kodanda Rama Dasa,
No.61, 1st Floor,
Thope ''A'' Street,
Ulsoor,
Bangalore-560 001."
It is hence evident that the document in question is not alleged to have been forged, while it was filed and marked in evidence before the civil court. The allegation is of having concocted page 11 of Exhibit 28 as being a part of the certified copy said to have been obtained by the petitioners, after the disposal of the suit. Hence, the counsel for the petitioner seeking to contend that there is a bar under Section 195 CrPC, to the very maintainability of the complaint - unless brought in the fashion prescribed, is not tenable.
The further contention that there appeared to be an unholy nexus between the third respondent and other respondents is no longer relevant as the said officer is no longer the Station house officer of the Ulsoor Police station and the investigation, if any, would now be by some other officer. Even if the contention that the Ulsoor Police Station is without jurisdiction, it is a procedural aspect that could be corrected even now, if it is warranted and the Court of Magistrate would appropriately settle that controversy, if the investigating officer should appraise the court below of that infirmity, if it could be called one.
In any event, the court below only having ordered investigation by the police under Section 156(3) CrPC, it would not be prudent for this court to quash the proceedings at this juncture, exercising power either under Section 482 of the CrPC or under Articles 226 & 227 of the Constitution of India.
There is also no warrant to implead the Registrar General of this court or the Registrar, City Civil Court, Bangalore as parties to the present petition. There is also no warrant to order any enquiry as to whether there has been any mischievous tampering of certified copies of Exhibit D-28 by the petitioners. That would rightly be the subject matter of the criminal case that has been initiated by the complainant.
There is no merit in this petition and the same is dismissed. The interim order of stay in operation, stands vacated.